How Amendments Are Proposed: A Constitutional Guide

The Constitution of the United States outlines two ways in which an amendment can be proposed. The first method requires a two-thirds majority vote in both the House of Representatives and the Senate, while the second method, which has never been used, involves Congress calling a convention for proposing amendments upon the request of two-thirds of the states. After an amendment is proposed, the Archivist of the United States is responsible for administering the ratification process, which involves sending the proposed amendment to the states for their consideration. A proposed amendment becomes part of the Constitution once it is ratified by three-fourths of the states.

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Two-thirds majority vote in both the House of Representatives and the Senate

The United States Constitution, in Article V, outlines the process for proposing amendments. One way to propose an amendment is through a two-thirds majority vote in both the House of Representatives and the Senate. This method, outlined in Article V, has been the route for all 27 amendments proposed so far.

To initiate this process, two-thirds of the Members present in both the House and the Senate must vote in favour of the proposed amendment. This vote is based on a quorum, meaning that only the Members present are considered, rather than the entire membership of both chambers. This step is crucial, as it ensures that a significant portion of both chambers deems the amendment necessary.

Once the two-thirds majority vote is achieved in both chambers, the proposed amendment is then forwarded to the National Archives and Records Administration (NARA) for processing and publication. The Office of the Federal Register (OFR) within NARA plays a vital role in this process. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. Additionally, they assemble an information package for the states, which includes formal "red-line" copies of the joint resolution, copies in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.

Following the preparation of the information package by the OFR, the proposed amendment is submitted to the states for their consideration. This submission is done by sending a letter of notification to each state governor, along with the informational material prepared by the OFR. The governors then formally submit the amendment to their state legislatures, initiating the ratification process within the states.

The ratification process is essential, as it requires the approval of three-fourths of the states (38 out of 50) for the proposed amendment to become part of the Constitution. This step ensures that a supermajority of states consent to the amendment, reflecting a broad consensus across the country.

In summary, the process of proposing an amendment through a two-thirds majority vote in both the House of Representatives and the Senate involves several steps. From the initial vote in favour of the amendment to the ratification by a supermajority of states, this method of proposing amendments has been the established route for all amendments to the United States Constitution thus far.

Two-thirds of the states request a convention

The Constitution of the United States can be amended in several ways, as outlined in Article V. One method is for two-thirds of the states to request a convention, which has never been used. This process begins with the state legislatures, who can apply for a convention to propose amendments. Congress must then call for this convention, which can propose amendments with or without Congress's approval.

The convention method provides an avenue for states to bypass Congress in the amendment process. Once the convention proposes an amendment, it is sent to the states for ratification. The amendment becomes part of the Constitution when three-fourths of the states, or 38 out of 50 states, ratify it. This can be done through state legislatures or state ratifying conventions, with Congress specifying the mode of ratification.

The convention method of proposing amendments has sparked debates among scholars. One issue is whether Congress must convene a convention when the required number of state applications is reached. Another question is whether the convention can be constrained, known as the "runaway convention" debate. Additionally, the level of Congress's control over the convention's rules and procedures is uncertain.

While the convention method has never been used, it theoretically allows states to initiate constitutional amendments without Congress's involvement. This process underscores the flexibility built into the amendment process, enabling adaptations to the nation's governing document as circumstances change over time.

The Archivist of the United States administers the ratification process

The Archivist of the United States is responsible for administering the ratification process of amendments to the Constitution. The Archivist is appointed by the President with the advice and consent of the Senate and has several duties and responsibilities.

Firstly, the Archivist submits the proposed amendment to the States for their consideration. This is done by sending a letter of notification to each Governor, along with informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures or call for a convention, depending on Congress's specifications.

The Archivist also receives an original or certified copy of State action when a State ratifies a proposed amendment. This copy is immediately conveyed to the Director of the Federal Register, who examines the ratification documents for facial legal sufficiency and an authenticating signature. The Archivist does not make any substantive determinations regarding the validity of State ratification actions.

Once the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is then published in the Federal Register and U.S. Statutes at Large, serving as official notice to Congress and the Nation that the amendment process is complete.

Additionally, the Archivist has duties concerning the custody of Electoral College documents during United States presidential elections. These administrative responsibilities are often delegated to the Director of the Federal Register.

The current Archivist of the United States is Colleen Joy Shogan, who was nominated by President Joe Biden and confirmed by the Senate in May 2023. She is responsible for safeguarding and making available for study all permanently valuable records of the federal government, including the original Declaration of Independence, Constitution, and Bill of Rights.

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Three-quarters of the states must ratify the amendment

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. After an amendment is proposed by Congress, it is sent to the states for ratification. For an amendment to be ratified, it must be approved by three-quarters of the states, or 38 out of 50 states. This can be achieved through one of two methods, as determined by Congress.

The first method involves the state legislatures. Once an amendment is proposed by Congress, it is sent to the state legislatures for ratification. For an amendment to be ratified through this method, it must be approved by the legislatures of three-quarters of the states. This method has been used for all amendments except one, the Twenty-First Amendment.

The second method involves state ratifying conventions. In this process, Congress calls for a convention in each state for the sole purpose of deciding whether to ratify a proposed amendment. For an amendment to be ratified, it must be approved by three-quarters of the conventions. While this method has been provided for in Article V, it has never been used.

It is important to note that the President does not have a constitutional role in the amendment process. The joint resolution proposing an amendment does not require the signature or approval of the President. Instead, it is forwarded directly to the National Archives and Records Administration (NARA) for processing and publication.

The process of amending the Constitution is rigorous and requires significant support in both Congress and the states. By requiring the approval of three-quarters of the states, the amendment process ensures that any changes to the Constitution reflect the consensus of a broad majority of the country.

The President does not have a constitutional role in the amendment process

The process of amending the Constitution of the United States is derived from Article V of the Constitution. The Congress, whenever two-thirds of both Houses deem it necessary, shall propose Amendments to this Constitution. Alternatively, Congress may require that three-fourths of state ratifying conventions approve a proposed amendment. Congress has specified this second mode of amendment only once, for the Twenty-First Amendment, which repealed the Eighteenth Amendment establishing Prohibition.

The Constitution does not outline a specific role for the President in amending the Constitution. The Supreme Court has articulated the Judicial Branch's understanding that the President has no formal constitutional role in the amendment process. This was affirmed in a brief opinion in the 1798 case Hollingsworth v. Virginia, where the Court held that the Eleventh Amendment had been constitutionally adopted. Justice Samuel Chase stated during oral argument that the President has nothing to do with the proposition or adoption of amendments to the Constitution.

Despite the absence of a formal role, some Presidents have played a ministerial role in transmitting Congress's proposed amendments to the states for potential ratification. For example, President George Washington sent the first twelve proposed amendments, including the ten proposals that later became the Bill of Rights, to the states for ratification after Congress approved them. However, it is important to note that this role is not constitutionally mandated or required.

After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register. The original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States, which includes formal "red-line" copies of the joint resolution and the statutory procedure for ratification.

In summary, while the President may have played an informal role in transmitting proposed amendments to the states for ratification in the past, the President does not have a constitutional role in the amendment process. The authority to propose and ratify amendments rests with Congress and the states, respectively, as outlined in Article V of the Constitution.

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